The Rule of Law as a Law of Law

Justice Scalia is famous for his strong rule orientation, best articulated in his 1989 article, “The Rule of Law as a Law of Rules.” In this Essay, we explore the extent to which that rule orientation is consistent with the Constitution’s original meaning. We conclude that it is far less consistent with the Constitution than is generally recognized. The use of standards rather than rules is prescribed not only by a few provisions in the Bill of Rights and the Fourteenth Amendment but also by key aspects of the 1788 constitutional text. The executive power, the Necessary and Proper power, and indeed the entire scheme of enumerated powers are all infused with standards, largely through the Constitution’s implicit incorporation of fiduciary norms as a background principle of interpretation. The Constitution often prescribes rules, but it often does not. The law is what it is, whether or not it conforms to some abstract jurisprudential norm. The rule of law is not a law of rules. It is a law of law